April 25, 2012

Proposed Franchising Law A Convoluted Mess

As a lawyer whose job here includes reading laws and legislation much of the day, there are few things that irk me more than poorly-drafted copy. (Sometimes I even wonder whether some laws are poorly drafted on purpose.) But exquisitely complex sections like this one from Missouri Senate Bill 837 really take the cake:

It is the general assembly’s intent that this subdivision be interpreted as set forth in the Missouri cases of High Life Sales Company v. Brown-Forman Corporation, 823 S.W.2d 493 (Mo. 1992) and Brown-Forman Distillers Corp. v. McHenry, 566 S.W.2d 194 (Mo. 1978), rather than in Missouri Beverage Company, Inc. v. Shelton Brothers, Inc., 796 F. Supp. 2d 988 (W.D. Mo. 2011), aff’d, 11-2456 (8th Cir. February 28, 2012). Further, the general assembly declares that the federal court’s interpretation of this subdivision set forth in Missouri Beverage Company, Inc. v. Shelton Brothers, Inc., 796 F. Supp. 2d 988 (W.D. Mo. 2011), aff’d, 11-2456 (8th Cir. February 28, 2012) should be abrogated in favor of the preceding cases . . .

In a nutshell, the Missouri Legislature is referencing court rulings while trying to write a law instead of . . . actually writing the law. This is one of those proposed sections that make lawyers and special interests salivate and just about everyone else grimace in distaste and confusion. Unless you know what the court cases cited here do and do not say, it is almost impossible to understand how to best comply with the law. In a very real way, the law being “created” is not itself in the law. That is laziness, or worse.

What makes this particular instance especially bad is that it is fairly clear, given the apparent source of the law’s impetus, that this new, convoluted law could ultimately hurt consumers. The jumble of cases laid out above does not make that reality even remotely clear, which may very well be the point.

But whatever the reason for this proposed legislation, that it has been written in this form without clearly and unambiguously articulating what the new law will actually be as a result of this section — and relying on courts to de facto make the law through this sort of legislative reference — should be frustrating to taxpayers, policymakers, and companies alike. The legislature can, and should, do better.

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